Citation Nr: 0336185
Decision Date: 12/23/03 Archive Date: 12/29/03
DOCKET NO. 02-19 291 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to a disability rating in excess of 50
percent for post-traumatic stress disorder, based on initial
award.
2. Entitlement to an increased rating for low back strain,
with degenerative changes, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Martin F. Dunne, Counsel
INTRODUCTION
The veteran served on active duty from June 1967 to June
1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2001 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York. The decision included a grant of service
connection for post-traumatic stress disorder (PTSD),
assigning the disability a 50 percent rating, effective from
October 1998, the date of receipt of the claim, and an
increased rating, from 0 percent to 20 percent, for low back
strain, with degenerative changes, effective from February
2001, the date of receipt of the claim for increase. Those
are the only issues the veteran appealed.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
During the pendency of this appeal, the Veterans Claims
Assistance Act of 2000 (VCAA) was signed into law. This
liberalizing law is applicable to this appeal. See Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the
provisions of the law, VA promulgated regulations codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Act and
implementing regulations essentially eliminate the
requirement that a claimant submit evidence of a well-
grounded claim, and provides that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim, but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. It also includes new
notification provisions.
In July 2001, the RO granted service connection for post-
traumatic stress disorder, and assigned a 50 percent
evaluation. The veteran filed a timely appeal, contending
that the rating was inadequate to compensate him for the
disorder. An October 2002 statement of the case (SOC)
properly provided the veteran with the law and regulations
pertaining to VCAA. However, despite the RO's actions, they
were not in compliance with VCAA. Compliance requires that,
once a "substantially completed claim" has been received,
that the veteran be notified, via letter, of any information,
and any medical or lay evidence, not previously provided to
the Secretary, that is necessary to substantiate the claims.
A general form letter, prepared by the RO, not specifically
addressing the disability or disabilities at issue, is not
acceptable. The RO must indicate which portion of that
information and evidence, if any, is to be provided by the
claimant, and which portion, if any, the Secretary will
attempt to obtain on behalf of the claimant. In Quartuccio
v. Principi, 16 Vet. App. 183 (2002), the Court concluded
that "Both the statute, 38 U.S.C. § 5103(a), and the
regulation, 38 C.F.R. § 3.159, clearly require the Secretary
to notify a claimant which evidence, if any, will be obtained
by the claimant and which evidence, if any, will be retrieved
by the Secretary."
In this regard, once the veteran indicated his disagreement
with the initial assignment of a 50 percent rating for PTSD,
the RO had a duty to inform the veteran of the evidence they
would obtain and the evidence he must provide to establish a
basis for a higher rating. Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002). A general letter addressing these
provisions is not sufficient. The letter must be very
specific as to what evidence VA has and exactly what evidence
the veteran needs to provide. If VA failed to discuss the
notice requirement, VA did not consider all applicable
provisions of law and provide an adequate statement of
reasons or bases for its decision. See Charles v. Principi,
16 Vet. App. 370, 373-74 (2002). In the veteran's case, the
notifications to him have not met the standards required
under the above-cited cases and this violation of due process
must be addressed before the Board can undertake any action
in this claim. This violation of due process must be
addressed before the Board can undertake any action in this
claim.
Recent decisions of the Federal Court in Disabled American
Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339,
1348 (Fed. Cir. 2003), and in Paralyzed Veterans of America
v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009,
-7010 (Fed. Cir. Sept. 22, 2003) have also addressed
shortcomings of VA in its application of VCAA.
The Board notes that the assigned 50 percent rating is based
on the initial award of that benefit, effective from October
1998, the date of receipt of his claim. Hence, that issue
has been recharacterized as involving the propriety of the
assignment of the initial rating because, where the question
for consideration is the propriety of the initial evaluation
assigned, evaluation of the medical evidence since the grant
of service connection and consideration of the
appropriateness of "staged rating" is required. See
Fenderson v. West, 12 Vet. App. 119 (1999).
In support of the veteran's claim for an increased rating for
low back disability, he maintains he experiences radiating
pain into his posterior thighs. This would imply nerve
involvement and the veteran requests his service-connected
back disability also be evaluated under the criteria for
intervertebral disc syndrome. On September 23, 2002, there
became effective revised schedular criteria for the
evaluation of service-connected intervertebral disc syndrome.
Those schedular criteria were again revised on September 26,
2003. To date, neither the veteran nor his representative
has been provided a copy of the newly revised regulations;
nor have those revised regulations been considered in the
adjudication of the veteran's current claim.
Further, the veteran's most recent VA examinations, which
were conducted to determine the severity of his service-
connected PTSD and low back strain, with degenerative
changes, took place back in May 2001, which is well over two
years ago. Where the available evidence is too old for an
adequate evaluation of the veteran's current conditions, VA's
duty to assist includes providing him with a new examination.
See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993);
Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In
light of the aforementioned, more contemporaneous
examinations of these disabilities should be undertaken prior
to the Board's adjudication of the veteran's current claims.
The Board notes that the veteran maintains he is receiving
Social Security benefits. Information received from the
Social Security Administration (SSA) notes that, as of August
2001, he had been denied disability benefits but, as of June
2002, he was entitled to SSI (Supplemental Security Income).
Prior to adjudication of this claim, an up-date of any
benefits he is actually receiving is required, along with
copies of any SSA decision by an Administrative Law Judge if
entitlement to disability has been granted, along with copies
of supporting medical documents that are not already in the
claims file. VA has a duty to obtain SSA records when it has
actual notice that the veteran is receiving SSA benefits.
See Voerth v. West, 13 Vet. App. 117, 121 (1999); Baker v.
West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2
Vet. App. 363, 370-72 (1992).
In view of the foregoing, this case is remanded for the
following:
1. The RO should send the veteran another
letter explaining the VCAA, including the
duty to assist and notification provisions
contained therein. In doing so, the
letter should explain what, if any,
information (medical or lay evidence) is
necessary to substantiate the claims on
appeal. A general form letter, prepared
by the RO, not specifically addressing
benefits and entitlements at issue, is not
acceptable. The letter should inform the
veteran of which portion of the
information and evidence is to be provided
by the veteran and which part, if any, VA
will attempt to obtain on behalf of the
veteran.
2. The RO should contact the veteran and
request the names and addresses of all
medical care providers, VA and private,
who treated him for both PTSD and low
back disability. After securing the
necessary releases, the RO should obtain
copies of those records not already in
the claims file and have them associated
with the claims folder. All attempts to
procure records should be documented in
the file. If the RO cannot obtain
records identified by the veteran, a
notation to that effect should be
inserted in the file. The veteran and
representative are to be notified of
unsuccessful efforts in this regard.
3. The RO should obtain confirmation
from the Social Security Administration
whether the veteran is entitled to
disability and/or SSI benefits and, if
entitlement to disability benefits has
been granted, the RO needs to obtain a
copy of the Administrative Law Judge's
decision granting the disability
entitlement, along with supporting
medical records that are not already in
the veteran's claims file. If the RO
cannot obtain this information from the
SSA, a notation to that effect should be
inserted in the file. The veteran and
representative are to be notified of
unsuccessful efforts in this regard.
4. The RO is to schedule the veteran to
undergo VA psychiatric, orthopedic and
neurological examinations to determine
the nature and extent of his service-
connected PTSD and low back disorder.
All indicated studies are to be
performed, to include x-rays being taken
of the low back. Prior to the
examinations, the claims folder, to
include the service medical and service
personnel records, must be made available
to the physicians for review of the case.
A notation to the effect that this record
review took place should be included in
each examiner's report.
a) Psychiatric examination: The RO
should schedule the veteran to undergo a
comprehensive VA examination by a
psychiatrist, preferably someone familiar
with PTSD, to determine the nature and
severity of the veteran's service-
connected PTSD. All appropriate tests
and studies should be conducted, and all
clinical findings should be reported in
detail. The examiner must provide a
multi-axial assessment, including
assignment of a Global Assessment of
Functioning (GAF) score; an explanation
of what the score represents; and note
the percentage of the GAF score
representing impairment due solely to
PTSD. An assessment of impact of the
veteran's PTSD on his ability to obtain
and retain substantially gainful
employment also should be provided. The
examination report must include all
examination results, along with the
rationale underlying all opinions
expressed and conclusions reached,
citing, if necessary, to specific
evidence in the record. The examiner's
typewritten report should be associated
with the other evidence on file in the
veteran's claims folder.
b) Orthopedic and neurological
examinations: The RO should schedule the
veteran to undergo comprehensive VA
orthopedic and neurological examinations
to determine the nature and severity of
the veteran's service-connected low back
strain, with degenerative changes. All
appropriate tests and studies should be
conducted, to include having x-rays taken
of the lumbosacral spine, and all
clinical findings should be reported in
detail. The examiner should set forth
all objective findings regarding the
lumbosacral spine, including complete
range of motion (provided in degrees,
with standard or normal ranges of motion
provided for comparison purposes). The
physician should render specific findings
as to whether, during the examination,
there is objective evidence of pain on
motion, weakness, excess fatigability,
and/or incoordination associated with the
low back. If there is clinical evidence
of pain on motion, the examiner should
indicate the degree of motion at which
such pain begins. If the veteran is
being examined during a period of "acute
exacerbation" of his low back symptoms,
the examiner should clearly so state.
Otherwise, after reviewing the veteran's
complaints and medical history, the
examiner should render an opinion, based
upon best medical judgment, as to
whether, and to what extent, the veteran
experiences likely additional functional
loss (beyond that which is demonstrated
clinically) due to pain and/or any of the
other symptoms noted above during flare-
ups and/or with repeated use.. To the
extent possible, the examiner should
express such functional loss in terms of
additional degrees of limited motion.
The examiner should also include specific
information regarding the frequency and
duration of incapacitating episodes
during the past 12 months. On
neurological examination, the examining
physician should specifically comment
regarding any neurological manifestations
directly attributable to the veteran's
service-connected low back strain, with
degenerative changes. Both the
orthopedic and neurological examiners
should offer opinions regarding the
effect of the veteran's service-connected
low back strain, with degenerative
changes, upon his ability to engage in
substantially gainful employment. All
examination findings, along with the
complete rationale for each conclusion
reached and opinion expressed, should be
set forth in a typewritten report.
5. The veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications must be associated with the
claims folder. The veteran is hereby
advised that failure to report for a
scheduled VA examination without good
cause shown may have adverse effects on
his claim.
6. The RO must review the claims file
and ensure that there has been full
compliance with all notification and
development action required by
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002) and 38 C.F.R. § 3.159 (2003),
and that all appropriate development has
been completed (to the extent possible)
in compliance with this REMAND. If any
action is not undertaken, or is taken in
a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).
7. Thereafter, the RO should
readjudicate the issues on appeal, to
include consideration of staged ratings
when evaluating the PTSD issue,
Fenderson; and consideration of the
provisions of the rating schedule
governing the evaluation of service-
connected intervertebral disc syndrome
(Diagnostic Code 5293) prior to September
23, 2002, and during the period from
September 23, 2002 to September 26, 2003,
as well as those recently-revised
criteria for the evaluation of
intervertebral disc syndrome and/or other
disabilities of the spine which became
effective September 26, 2003, when
evaluating the low back issue. The RO is
advised that they are to make a
determination based on the law and
regulations in effect at the time of
their decision, to include any further
changes in VCAA and any other applicable
legal precedent. If the benefits sought
on appeal remain denied, the veteran and
his representative should be provided a
supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal. A reasonable
period of time should be allowed for
response.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded to the
regional office. See Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).